In a recent article titled “Asphyxiated by Politics, Secularism Gasps for breath: Can the Supreme Court rescue it?” in The Wire, Satya Prasoon and Ashwini Tallur call for the Supreme Court to take an aggressive stand while interpreting the contours of secularism in the Indian polity. While I agree with the authors’ argument that secularism in India is gasping for breath, I have serious objections to the way they accused the Supreme Court of being evasive and resorting to mechanical applications of the idea of secularism.

First things first: I assisted Arvind P. Datar, Senior Advocate, who appeared for Abhiram Singh before a seven-judge bench of the Supreme Court in Abhiram Singh v. C.D. Commachen(2017) 2 SCC 629.

Objection 1

Prasad and Tallur write:

“Although largely evasive, the court did assert itself during the hearings in Abhiram Singh case in 2016 by refusing to revisit the observations of Justice J.S. Verma in the case of Ramesh Yashwant Prabhoo v Kashinath Kunte, where the apex court made Hindutva compatible with Indian secularism by describing it as a “way of life” and not a religion. Notably, this refusal to relook has in one stroke, legitimised invocation of Hindutva appeal using innuendos without court sanction.” (“emphasis mine”)

Indeed, in Ramesh Prabhoo v. Kashinath Kunte(1996) 1 SCC 130, Justice Verma described Hindutva as a “way of life”. However, this was not the question under consideration in Abhiram Singh. Let me outline the events leading up to this decision in seriatim.

1. In 1996, a three-judge bench of the Supreme Court, in Abhiram Singh v. C.D. Commachen(1996) 3 SCC 665, referred the following three questions to a five-judge bench of the Supreme Court:

whether the learned Judge who tried the case is required to record prima facie conclusions on proof of the corrupt practices committed by the returned candidate or his agents or collaborators [leaders of the political party under whose banner the returned candidate contested the election] or any other person on his behalf?

whether the consent of the returned candidate is required to be proved and if so, on what basis and under what circumstances the consent is held proved?

on reaching the conclusion that consent is proved and prima facie corrupt practices are proved, whether the notice under Section 99(1) proviso (a) should contain, like mini judgment, extraction of pleadings of corrupt practices under Section 123, the evidence – oral and documentary and findings on each of the corrupt practices by each of the collaborators, if there are more than one, and supply them to all of them for giving an opportunity to be complied with?

1. In 2002, a five-fudge bench of the Supreme Court, in Narayan Singh v. Sunderlal Patwa (2003) 9 SCC 300, wrongly recorded that Abhiram Singh (1996) was disposed of as being infructuous, and referred the question on interpretation of section 123(3) of the Representation of the People Act, 1951 to a seven-judge bench.

2. In 2014, a five-judge bench of the Supreme Court, in Abhiram Singh v. C. D. Commachen (2014) 14 SCC 382, noted that the appeal has not become infructuous, and held as follows:

“… since one of the questions involved in the present appeal is already referred to a larger bench of seven judges, we think it appropriate to refer this appeal to a limited extent regarding interpretation of sub-section (3) of section 123 of the 1951 Act to a larger bench of seven judges.”(emphasis mine)

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It is pertinent to note that when matters are referred to a larger bench, specific questions are identified for its consideration. In other words, the larger bench has no power to go beyond the referral order. In the instant case, contrary to what the authors of the article claim, Justice Verma’s observation on Hindutva was not referred to the seven-judge bench in Abhiram Singh (2016). The main question under consideration was the interpretation of section 123(3) of the Representation of the People Act, 1951. Section 123(3) reads as follows:

“[(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate” (emphasis mine)

The focus of Abhiram Singh (2016) was to interpret the phrase “his religion” as appearing in section 123(3): whose religion, race, caste, community or language, if appealed to, would constitute corrupt practice? The Supreme Court rightly held that the phrase “his religion” must be construed as referring to all the categories of persons preceding those words.

Therefore, it is necessary to clarify that (a) the Supreme Court did not “refuse” to revisit the observations of Justice Verma on Hindutva; and (b) the Supreme Court did not legitimise invocation of Hindutva appeal using innuendos.

Objection 2

In another paragraph, Prasoon and Tallur write:

“A start can be made by asking the Government to clarify its stand on rebuilding the Kedarnath shrine when it fought tooth and nail against rebuilding shrines destroyed in the 2002 Gujarat riots, to provide its rationale for phasing out the Haj subsidy while continuing subsidies for other religious groups, to explain its stand on expediting citizenship claims of all immigrant groups except Muslims in their Citizenship Amendment Bill, and by making politicians accountable for the innuendos against Muslims, using the principle of Abhiram Singh case.” (emphasis mine)

I would like to ask three questions to the authors:

Who must ask the government to clarify its stand on rebuilding the Kedarnath Shrine, etc.? Is it the Supreme Court?

If yes, under what constitutional authority?

The Supreme Court is not a supra-constitutional authority. At best, what the Supreme Court can do is to address these questions when appropriate litigations on the said topics arise. Journalists and scholars, while criticising judgments of the courts, must be extra cautious – they must write with utmost precision and give due respect to constitutional provisions.